BiH Court Correctly Ruled in Case of Srebrenica Genocide
The BiH Court War Crimes Chamber in Sarajevo, presided by local judge Hilmo Vučinić, rendered a guilty sentence on 29 July 2008 convicting seven defendants, former members of the Republic of Srpska Ministry of Interior, for genocide committed against Muslims in Srebrenica. The primary defendant Miloš Stupar was sentenced to 40 years of imprisonment, Milenko Trifunović to 42, Aleksandar Radovanović to 42, Brano Džinić to 42, Slobodan Jakovljević to 40, Branislav Medan to 40, and Petar Mitrović to 38 years of imprisonment. Velibor Maksimović, Dragiša Živanović, Milovan Matić, and Miladin Stevanović were acquitted of all charges.
According to the HumanitarianLawCenter assessment, the trial conducted before the BiH Court met all the standards of professional and fair trial. International judges who were members of the trial chamber, Judge Brilman Paul Melchior and Judge Fisher Shireen Avis, certainly contributed to the proper course of this trial. The court showed that it is ready and able to prosecute the most grievous criminal offences even in such a complex case, which was followed, from the very beginning, by a series of new procedural situations, which should be resolved. The first instance trial chamber correctly ruled in this case and it did not turn over the responsibility to the second instance.
The trial, which lasted for more than two years, had 120 hearings in which 129 witnesses were examined, 7 of whom were protected witnesses and 11 were court experts. Several hundreds pieces of material evidence were also presented. The court established that the defendants, as members of the Šekovići Special Police unit Second Squad Skelani platoon, secured and controlled the Bratunac – Milići road, including the section near the Kravica Cooperative warehouse in Kravica on 12 and 13 July 1995. The soldiers conducted reconnaissance missions on this road and attacked Bosniaks with tanks and other weapons, forcing men to surrender until defendant Milenko Trifunović, in the capacity of Skelani Platoon commander, called and encouraged them to surrender giving them false security guarantees. They kept thousands of captured men in and around the meadow in Sandići. A certain number of men surrendered to the members of the Republic of Srpska Army and the soldiers took the rest of them to different locations, including the Kravica Cooperative warehouse. The prisoners were executed on 13 July 1995 around 18:00. Soldiers shot from automatic weapons and threw hand grenades at them. The most significant piece of evidence was a statement given by the protected witness of the Prosecution, S4, and a statement given by defendant Petar Mitrović during the investigation. The protected witness eye-witnessed the event and described in detail the role of each of the accused persons. Seven accused shot at prisoners after which Petar Mitrović, Slobodan Jakovljević, and Branislav Medan were sent to the backside of the warehouse in order to prevent any possible escape of the prisoners, while Brano Džinić took two boxes of grenades and threw them at the pile of killed and wounded who begged for help. The exact number of the people who were killed in the warehouse has not yet been determined because the bodies were transferred to secondary mass gravesites, but there is an estimation that more than a thousand of Bosniak men were killed on this occasion. The Defence Council tried to justify the killing of prisoners by the fact that a prisoner had previously killed one of the police members, after which police officers got scared of the mass of prisoners and reacted by shooting at them in self-defence. It was determined that the shooting lasted for one hour and a half and it started in one part of the warehouse and ended in the opposite part, and it was followed by explosions of hand grenades. Self defence in such circumstances is hardly possible bearing in mind this violent and systematic execution.
The necessary component of genocide is the intent to destroy. The Prosecution managed to prove the existence of the defendants’ intent to destroy since it proved that they knew they were supposed to participate in the liberation i.e. taking over of Srebrenica, which meant that they were supposed to take part in the deportation of Bosniak women and children and killing of men, but that they did not know what were their concrete tasks whatsoever. Commander Trifunović relayed an order to them to take prisoners to the Kravica Cooperative warehouse. When some of them were told to go to the backside of the warehouse, they knew that the execution was about to happen, which represented the permanent banishment of Bosniaks from Srebrenica. According to the international law and the then applicable domestic law, Bosniaks from Srebrenica represented a protected group at the time.
Miloš Stupar, the Commander of the Second Squad, was charged with command responsibility as well. The Defence tried to prove that, at the critical time, defendant Stupar was not the commander and that prior to this event, in July 1995, he was replaced by a young officer Rado Čuturić. However, based on the statements given by witnesses, who were high-ranking officers at the time, and material evidence presented, the trial chamber established that Čuturić was only a Deputy Commander for field activities, which did not affect the status of defendant Stupar. The trial chamber failed to determine beyond reasonable doubt that defendant Stupar knew that his men were to commit this crime, but he subsequently learned about the event and failed to punish the perpetrators. Were the perpetrators of this crime immediately punished, it would have represented a preventive measure, since the crime in the village of Kravica was one of the first crimes that were about to happen in the area of Srebrenica. Indictment also charged the Platoon Commander, Milenko Trifunović, with command responsibility. When presenting the short reasoning of the verdict, the trial chamber explained that there cannot be dual grounds of responsibility since the defendant committed the crimes he was charged with as an immediate perpetrator. However, the fact that, at the critical time, he held this position represents an aggravating circumstance when measuring sentence. Aggravating facts also existed for defendants Brano Džinić and Aleksandar Radovanović and they affected the severance of punishment. Brano Džinić acted in a cruel and evil manner when he threw hand grenades at prisoners who were not able to escape and who were dying in the worst of suffering. Radovanović, on the other hand, incited and encouraged others to kill. There were also certain mitigating circumstances on the side of Petar Mitrović. Even though he exercised his right to silence, during the investigation he told the truth and he suffered serious psychological problems, which represents a sign of remorse. As for the acquitted persons, the trial chamber accepted Maksimović, Živanović, and Stevanović’s defence. They claimed that at the critical time they were not even present in Kravica. Defence witnesses and protected witness S4 confirmed this claim. In the case of Milovan Matić, the trial chamber respected the in dubio pro reo principle (when in doubt rule in favour of the accused) since his criminal liability was not established beyond a reasonable doubt.
This trial was marked by the application of now applicable BiH Criminal Code passed in 2003. Even though the trial was interrupted on several occasions because the defendants were on hunger strike and demanded to be prosecuted in accordance with the Socialist Federative Republic of Yugoslavia (SFRJ) Criminal Code, which was applicable at the time when the crime was committed, the BiH Constitutional Court, in the Maktouf case, ruled in favour of applying the law from 2003 and the trial chamber in this case respected this ruling. This was the first genocide trial in Bosnia and Herzegovina. If there is a crime that deserves the most severe punishment, then it must be genocide, especially when committed in this manner and with so many victims. A protected group of people was killed in a manner which derogates human dignity. They were imprisoned and kept in inhuman conditions. ICTY prosecuted Radoslav Krstić in 2004 for the same crime and he was convicted to 35 years of imprisonment.